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EXHIBIT 3.18
BYLAWS
OF
AUTOMATION ATWORK
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BYLAWS
OF
AUTOMATION ATWORK
(a California corporation)
TABLE OF CONTENTS
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ARTICLE I - Offices
Section 1.01 Principal Executive Office 1
ARTICLE II - Shareholders
Section 2.01 Annual Meetings 1
Section 2.02 Special Meetings 2
Section 2.03 Adjourned Meetings 2
Section 2.04 Place of Meetings 3
Section 2.05 Notice of Shareholder Meetings 3
Section 2.06 Quorum of the Shareholders 6
Section 2.07 Conduct of Meetings 6
Section 2.08 Proxies 7
Section 2.09 Voting 8
Section 2.10 Inspectors of Election 10
Section 2.11 Validation of Defectively
Called or Noticed Meetings 11
Section 2.12 Action Without Meeting 13
ARTICLE III - Directors
Section 3.01 Powers 15
(i)
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Section 3.02 Number of Directors 15
Section 3.03 Election and Term of Office 16
Section 3.04 Creation and Filling of
Vacancies on the Board 16
Section 3.05 Fees and Compensation 18
Section 3.06 Organization Meeting 18
Section 3.07 Other Regular Meetings 18
Section 3.08 Special Meetings 19
Section 3.09 Place of Meetings 20
Section 3.10 Action at a Meeting:
Quorum and Required Vote 20
Section 3.11 Adjournment 21
Section 3.12 Action Without Meeting 21
Section 3.13 Committees of the Board 22
ARTICLE IV - Officers
Section 4.01 Officers 23
Section 4.02 Election and Term of Office 24
Section 4.03 Removal and Resignation 24
Section 4.04 Vacancies 25
Section 4.05 Duties and Compensation 25
ARTICLE V - Indemnification of Agents of the
Corporation; Purchase of Liability
Insurance
Section 5.01 Indemnification of Agents 25
Section 5.02 Purchase of Liability Insurance 30
(ii)
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ARTICLE VI - Miscellaneous
Section 6.01 Record Date 31
Section 6.02 Maintenance of Books and Records 32
Section 6.03 Inspection of Corporate Records 33
Section 6.04 Annual and Other Reports 35
Section 6.05 Certificates for Shares 38
Section 6.06 Representation of Shares of
This and Other Corporations 39
Section 6.07 Construction of these Bylaws 40
ARTICLE VII - Amendments
Section 7.01 Power of Shareholders 41
Section 7.02 Power of Directors 41
CERTIFICATE OF SECRETARY 42
(iii)
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BYLAWS
OF
AUTOMATION ATWORK
(a California corporation)
ARTICLE I
Offices
Section 1.01 Principal Executive Office. The principal executive
office of the corporation is located at 2150 Trade Zone Boulevard, Suite 201,
San Jose, California 95131. The Board of Directors shall have full power and
authority to, and to authorize appropriate officers of the corporation to,
change the location of the principal executive office and to establish other
offices of the corporation.
ARTICLE II
Shareholders
Section 2.01 Annual Meetings. An annual meeting of shareholders shall
be held for the election of directors on the second Tuesday in May of each year
(or, should such day fall upon a legal holiday, then at the same time on the
first day thereafter which is not a legal holiday) at 10:00 A.M. of such day;
or at such other time and/or date as the Board of Directors shall determine,
provided, however, that such meeting shall be held not more than 15 months
after the last preceding annual meeting (or, in the case of the first annual
meeting, after the organization of the corporation)- Any other proper business
may be transacted at the annual meeting.
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Section 2.02 Special Meetings. Special meetings of the shareholders, for
the purpose of taking any action permitted by the shareholders under the
General Corporation Law and the Articles of Incorporation, may be called at any
time by the Chairman of the Board or the President, or by the Board of
Directors, or by one or more shareholders entitled to cast not less than ten
percent (10%) of the votes at the meeting. Upon request in writing directed to
the Chairman of the Board, President, Vice President or Secretary by any person
(other than the Board) entitled to call a special meeting of shareholders that
a special meeting of shareholders be called for any proper purpose, the officer
forthwith shall cause notice to be given to shareholders entitled to vote that
a meeting will be held at a time requested by the person or persons calling the
meeting, but not less than 35 days, nor more than 60 days, after receipt of the
request.
Section 2.03 Adjourned Meetings. Any shareholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares, the holders of which are either
present in person or represented by proxy thereat, but in the absence of a
quorum no other business may be transacted at such meeting, except as provided
in Section 2.06.
When a shareholders' meeting is adjourned to another time or place,
except as provided below, notice need not be given of the time and place of or
of the business to be conducted at the adjourned meeting if the time and place
thereof are announced at
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the meeting at which such adjournment is taken. When any shareholders' meeting
is adjourned for 45 days or more, or if after adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting shall be given
to each shareholder of record entitled to vote at the meeting.
At the adjourned meeting, provided that the quorum requirements of
Section 2.06 are satisfied, the corporation may transact any business which
might have been transacted at the original meeting.
Section 2.04 Place of Meetings. All annual or other meetings of
shareholders shall be held at the principal executive office of the
corporation, or at any other place within or without the State of California
which may be designated, either by the Board of Directors or by the written
consent of all persons entitled to vote thereat and not present at the meeting,
given either before or after the meeting and filed with the Secretary of the
corporation.
Section 2.05 Notice of Shareholder Meetings. Written notice of any
meeting of shareholders shall be given to each shareholder entitled to vote,
either personally or by first-class mail, or, if the outstanding shares of the
corporation are held of record by 500 or more persons (determined as provided by
Section 605 of the General Corporation Law) on the record date for the
shareholders' meeting, by third-class mail, or other means of written
communication, charges prepaid, addressed to such shareholder at such
shareholder's address appearing on the books
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of the corporation or given by such shareholder to the corporation for the
purpose of notice. If no such address appears on the books of the corporation
and a shareholder has given no address for the purpose of notice, then notice
shall be deemed to have been given to such shareholder if it is (i) sent by
mail or other means of written communication addressed to the place where the
principal executive office of the corporation is located, or (ii) published at
least once in a newspaper of general circulation in the county in which the
principal executive office is located.
Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of
written communication. An affidavit of mailing of any such notice in
accordance with the foregoing provisions, executed by the Secretary, Assistant
Secretary or any transfer agent of the corporation shall be prima facie
evidence of the giving of the notice.
If any notice addressed to the shareholder at the address of such
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at such address, all future notices shall be deemed to have been duly given to
such shareholder without further mailing if the same shall be available for the
shareholder upon written demand of the shareholder at the principal executive
office of the corporation for a period of one
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year from the date of the giving of the notice to all other shareholders.
Such written notice shall be given to each shareholder entitled to vote
at the meeting not less than ten days (or, if sent by third-class mail, 30
days) nor more than 60 days before the date of the meeting. Such notice shall
state:
(a) the place, the date, and the hour of such meeting; and
(b) in the case of a special meeting, the general nature of the
business to be transacted (and no other business may be transacted at such
meeting); and
(c) in the case of the annual meeting, those matters which the Board,
at the time of the mailing of the notice, intends to present for action by the
shareholders, but subject to the requirements of (d), (e) and (f) below, any
proper matter may be presented at the meeting for action by the shareholders;
and
(d) if directors are to be elected, the names of nominees intended at
the time of the notice to be presented by management for election; and
(e) the general nature of any proposal to take action with respect to
approval of, (i) a contract or other transaction between the corporation and
one or more of its directors or other persons described in Section 310 of the
General Corporation Law, (ii) amendment of the Articles of Incorporation, (iii)
a reorganization of the corporation as defined in Section 181 of the General
Corporation Law, (iv) voluntary dissolution of the
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corporation, or (v) a plan of distribution in the course of dissolution of the
corporation other than in accordance with the liquidation rights of outstanding
preferred shares, if any, pursuant to Section 2007 of the General Corporation
Law; and
(f) such other matters, if any, as may be expressly required by
applicable law.
Section 2.06 Quorum of the Shareholders. Unless otherwise provided in the
Articles of Incorporation, a majority of the shares entitled to vote at the
meeting, represented by holders in person or by proxy at the meeting, shall
constitute a quorum for the transaction of business at the meeting. Whenever
under the General Corporation Law any shares are disqualified from voting on
any matter, they shall not be considered outstanding for purposes of
determining the quorum required at a meeting held to act upon that matter.
The shareholders present at a duly called or held meeting at which a
quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum, and by any greater
number of shares otherwise required to take such action by applicable law or the
Articles of Incorporation.
Section 2.07 Conduct of Meetings. Subject to the requirements of
applicable law, and the express provisions of the Articles of Incorporation and
these bylaws, all annual and special
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meetings of shareholders shall be conducted in accordance with such rules and
procedures as the Board of Directors may determine and, as to matters not
governed by such rules and procedures, as the Chairman of such meeting shall
determine. The Chairman of any annual or special meeting of shareholders shall
be designated by the Board of Directors and, in the absence of any such
designation, shall be the President of the corporation.
Section 2.08 Proxies. Every person entitled to vote shares of this
corporation shall have the right to do so in person or by a written proxy
executed by such person or his duly authorized agent and filed with the
Secretary of the corporation, authorizing another person or persons to
vote or execute consents with respect to such shares. Subject to the
provisions of this Section and applicable law, any proxy duly executed
continues in full force and effect until revoked by the person executing it
prior to the vote pursuant thereto.
A proxy (other than a proxy which states that it is irrevocable and
otherwise meets the requirements of Section 705(e) of the General Corporation
Law) is revoked by:
(a) a written instrument revoking it, or a duly executed proxy bearing
a later date, executed by the person executing the proxy being revoked, filed
with the Secretary of the corporation prior to the vote pursuant thereto; or
(b) as to any meeting by attendance at such meeting and voting of the
shares subject thereto by the person executing the proxy; or
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(c) written notice of the death or incapacity of the maker of such
proxy received by the corporation before the vote pursuant thereto is counted
(but the death or incapacity of the maker of the proxy does not revoke the
proxy prior to the receipt by the corporation of such written notice); or
(d) the expiration of eleven (11) months from the date of the
execution of the proxy, unless the person executing it specifies therein the
length of time for which such proxy is to continue in force.
Section 2.09 Voting. The Board of Directors may fix a record date for
the determination of the shareholders entitled to vote at any meeting of
shareholders, and if a record date for voting purposes is not fixed by the
Board, it shall be determined as provided in Section 6.01 below.
Unless the Articles of Incorporation provide for more or less than one
vote per share, and subject to the following provisions with respect to voting
on election of directors, each outstanding share, regardless of class, shall be
entitled to one vote on each matter on which such share is entitled to be
voted. Subject to the requirements of the next sentence, every shareholder
entitled to vote at any election for directors shall have the right to cumulate
such shareholder's votes and to give one candidate a number of votes equal to
the number of directors to be elected by the class of shares such shareholder
is entitled to vote multiplied by the number of votes to which such
shareholder's shares are normally entitled, or to distribute such shareholder's
votes on the
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same principle among as many candidates as the shareholder thinks fit. No
shareholder shall be entitled to cumulate votes in accordance with the preceding
sentence unless the name of the candidate or candidates for whom such votes
would be cast has been placed in nomination prior to the voting and any
shareholder has given notice at the meeting, prior to the voting, of such
shareholder's intention to cumulate such shareholder's votes. Any holder of
shares entitled to vote on any matter may vote part of the shares in favor of
the proposal and refrain from voting the remaining shares or (except in voting
upon election of directors) vote them against the proposal, but, if the
shareholder fails to specify the number of shares such shareholder is voting
affirmatively, it will be conclusively presumed that the shareholder's approving
vote is with respect to all shares such shareholder is entitled to vote. Voting
by the shareholders may be a voice vote or by ballot; provided, however, that
all elections for directors must be by ballot upon demand made by a shareholder
at the meeting and before the voting begins.
Except as provided in the second paragraph of Section 2.06:
(a) the affirmative vote of a majority of the shares represented and
voting at a duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the required quorum) shall
be the act of the shareholders, unless the vote of a greater number or voting
by classes is required for such act by the General
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Corporation Law or the Articles of Incorporation, provided that whenever under
the General Corporation Law any shares are disqualified from voting on any
matter, such shares shall not be considered outstanding for purposes of
determining the required vote to approve such matter; and
(b) in the election of directors, the candidates receiving the
highest number of votes of shares entitled to be voted for them, up to the
number of directors to be elected by such shares, are elected.
Section 2.10 Inspectors of Election. In advance of any meeting of
shareholders, the Board of Directors may appoint inspectors of election to act
at such meeting and any adjournment thereof. If inspectors of election are not
so appointed, or if any persons so appointed fail to appear or refuse to act,
then unless other persons are appointed by the Board of Directors prior to the
meeting, the Chairman of any such meeting may, and on the request of any
shareholder or a shareholder's proxy shall, appoint inspectors of election (or
persons to replace those who fail to appear or refuse to act) at the meeting.
The number of inspectors shall be either one or three. If inspectors of
election are to be appointed at a meeting on the request of one or more
shareholders or proxies, the majority of shares represented in person or by
proxy shall determine whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Section 707 of the
General Corporation Law and shall include:
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(a) determining the number of shares outstanding and the voting power of each,
the shares represented at the meeting, the existence of a quorum, and the
authenticity, validity and effect of proxies; (b) receiving votes, ballots or
consents; (c) hearing and determining all challenges and questions in any way
arising in connection with the right to vote; (d) counting and tabulating all
votes or consents and determining the result; and (e) taking such other action
as may be proper to conduct the election or vote with fairness to all
shareholders. In the determination of the validity and effect of proxies the
dates contained on the forms of proxy shall presumptively determine the order
of execution of the proxies, regardless of the postmark dates on the envelopes
in which they are mailed.
The inspectors of election shall perform their duties impartially, in good
faith, to the best of their ability and as expeditiously as is practical. If
there are three inspectors of election, the decision, act or certificate of a
majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate made by the inspectors of election is prima
facie evidence of the facts stated therein.
Section 2.11 Validation of Defectively Called or Noticed Meetings. The
transactions of any meeting of shareholders, however called and noticed and
wherever held, are as valid as though had at a meeting duly held after regular
call and notice, if the quorum requirements of Section 2.06 are satisfied and
if, either before or after the meeting, each of the following persons signs a
written
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waiver of notice, or a consent to the holding of such meeting, or an approval
of the minutes thereof:
(a) any person entitled to vote at the meeting not present at the
meeting in person or by proxy;
(b) any person who, though present, has, at the beginning of the
meeting, properly objected to the transaction of any business because the
meeting was not lawfully called or convened; or
(c) any person who, though present, has, during the meeting,
properly objected to the consideration of particular matters of business
required by the General Corporation Law to be included in the notice of the
meeting, but not so included. All such waivers, consents or approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
Except as otherwise provided in the Articles of Incorporation and subject
to the next sentence, neither the business to be transacted at, nor the purpose
of any annual or special meeting of shareholders need be specified in any
written waiver of notice, consent to the holding of the meeting or approval of
the minutes thereof. Any such waiver of notice of or consent to the holding of
a meeting at which a proposal described in Section 2.05(e) was or is to be
acted upon shall contain a statement of the general nature of such proposal.
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Section 2.12 Action Without Meeting. Unless otherwise provided in the
Articles of Incorporation:
Directors may be elected without a meeting only by unanimous written
consent of all of the persons who would be entitled to vote for the election of
such directors, provided that, if a vacancy occurs for any reason other than
the removal of a director, and if such vacancy is not filled by the remaining
directors, then such vacancy may be filled by the written consent of holders of
a majority of the outstanding shares entitled to vote for the election of the
director whose vacancy has occurred.
Any other action which, under any provision of the General Corporation
Law, may be taken at a meeting of the shareholders, may be taken without a
meeting, upon notice as hereinafter set forth, if a consent in writing, setting
forth the action so taken, is signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted.
All such written consents shall be filed with the Secretary of the
corporation.
The Board of Directors may fix a record date for the determination of
shareholders entitled to give such written consent, and if the record date for
such determination is not fixed by the Board, it shall be determined as
provided in Section 6.01 below.
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Unless the consents of all shareholders entitled to vote have been
solicited in writing, the following notices shall be given to each shareholder
entitled to vote who has not consented in writing:
(a) Written notice of any proposed shareholder approval, without a
meeting and by less than unanimous written consent, of any of the following
proposals shall be given at least ten (10) days before the consummation of the
action authorized by such approval: (i) a contract or other transaction between
the corporation and one or more of its directors or other persons described in
Section 310 of the General Corporation Law; (ii) indemnification of an agent of
the corporation as authorized by Article V of these bylaws; (iii) a
reorganization of the corporation as defined in Section 181 of the General
Corporation Law or (iv) a plan of distribution in the course of dissolution of
the corporation other than in accordance with the liquidation rights of
outstanding preferred shares, if any, pursuant to Section 2007 of the General
Corporation Law and
(b) Prompt written notice shall be given of the taking of any other
corporate action approved by shareholders without a meeting by less than
unanimous written consent. Such notices shall be given in the manner and shall
be deemed to have been given as provided in the first three paragraphs of
Section 2.05 of these bylaws.
Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or a
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personal representative of the shareholder, or their respective proxyholders,
may revoke the consent by a writing received by the corporation prior to the
time that written consents of the number of shares required to authorize the
proposed action have been filed with the Secretary of the corporation, but may
not do so thereafter. Such revocation, if timely, is effective upon its
receipt by the Secretary of the corporation.
ARTICLE III
Directors
Section 3.01 Powers. Subject to limitations of the General Corporation
Law and any limitations in the Articles of Incorporation as to action required
to be authorized or approved by the shareholders, the business and affairs of
the corporation shall be managed and all corporate powers shall be exercised by
or under the direction of the Board of Directors. Subject to the foregoing,
the Board may delegate the management of the day-to-day operation of the
business of the corporation to officers, agents and employees of the
corporation.
Section 3.02 Number of Directors. The authorized number of directors
shall be two (2) until changed by a duly adopted amendment of the Articles of
Incorporation or by an amendment of this Section 3.02 duly adopted by the vote
or written consent of holders of a majority of the outstanding shares entitled
to vote on such amendment; provided, however, that an amendment reducing the
number of directors to a number less than five (5) cannot be adopted if the
votes cast against its adoption at a meeting of the
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shareholders, or the shares not consenting in the case of action by written
consent, are equal to more than sixteen and two-thirds percent (16-2/3%) of
the outstanding shares entitled to vote.
Section 3.03 Election and Term of Office. At each annual meeting of
shareholders the directors shall be elected to hold office until the next annual
meeting. Each director, including a director elected to fill a vacancy, shall
hold office until expiration of the term for which such director was elected,
and until a successor has been elected and qualified, subject to the General
Corporation Law and the provisions of these bylaws with respect to vacancies on
the Board.
Section 3.04 Creation and Filling of Vacancies on the Board. A vacancy or
vacancies on the Board of Directors shall be deemed to exist in case of the
death, removal or resignation of any director, if the authorized number of
directors is increased, or if the shareholders fail, at any annual or special
meeting of shareholders at which any director or directors are to be elected,
to elect the full authorized number of directors to be elected at that meeting.
The Board of Directors may remove any director who has been declared of
unsound mind by an order of court or who has been convicted of a felony. In
addition, any or all of the directors may be removed without cause if such
removal is approved by the vote or written consent of holders of a majority of
the outstanding shares entitled to vote on the election of directors, subject
to the following:
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(a) No director may be removed (unless the entire Board is removed)
when the votes cast against removal, or not consenting in writing to such
removal, would be sufficient to elect such director if voted cumulatively at an
election at which the same total number of votes were cast (or, if such action
is taken by written consent, all shares entitled to vote were voted) and the
entire number of directors authorized at the time of the director's most recent
election were then being elected; and
(a) When by the provisions of the Articles of Incorporation the holders
of the shares of any class or series, voting as a class or series, are entitled
to elect one or more directors, any director so elected may be removed only by
the applicable vote of the holders of the shares of that class or series.
Any director may resign effective upon giving written notice to the
Chairman of the Board, the President, the Secretary or the Board of Directors
of the corporation, or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes
effective.
Unless otherwise provided in the Articles of Incorporation, vacancies in
the Board of Directors, except for a vacancy created by the removal of a
director, may be filled by a majority of the remaining directors, though less
than a quorum, or
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by a sole remaining director, and each director so elected shall hold office
until occurrence of an event specified above creating a vacancy in such
director's office or until such director's successor is elected and qualified.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors, provided, however, that a
vacancy in the Board of Directors created by the removal of a director may only
be filled by written consent if all shares entitled to vote on the election of
directors shall so consent in writing.
Section 3.05 Fees and Compensation. By resolution of the Board of
Directors, one or more of the directors may be paid a retainer for their
services as directors, or a fixed fee (with or without expenses of attendance)
for attendance at each meeting, or both. Nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee, or otherwise, and receiving
compensation therefor.
Section 3.06 Organization Meeting. Immediately following each annual
meeting of shareholders, the Board of Directors shall hold a regular meeting
at the place of the annual meeting or at such other place as shall be fixed by
the Board of Directors, for the purpose of organization, election of officers,
and the transaction of other business. Call and notice of such meeting are
hereby dispensed with.
Section 3.07 Other Regular Meetings. Other regular meetings of the Board
of Directors may be held at the time and
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place of regular meetings of the Board fixed in advance by the Board of
Directors. Call and notice of such regular meetings of the Board of Directors
are hereby dispensed with.
Section 3.08 Special Meetings. Special meetings of the Board of
Directors, for the purpose of taking any action permitted by the directors
under the General Corporation Law and the Articles Of Incorporation, may be
called at any time by the Chairman of the Board, the President, any Vice
President, the Secretary or by any two directors.
Notice of a meeting need not be given to any director who signs a waiver
of notice or a consent to hold the meeting or an approval of the minutes
thereof, whether before or after the meeting, or who attends the meeting
without protesting, prior to the meeting or at its commencement, the lack of
notice to such director. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
Subject to the preceding sentence, notice of the time and place of special
meetings shall be given to each director, (a) personally or by telephone or by
telegraph, in each case 48 hours prior to the holding of the meeting, or (b)
by mail, charges prepaid, addressed to the director at his or her address as it
is shown upon the records of the corporation or, if it is not so shown on such
records and is not readily ascertainable, at the place at which the meetings of
the directors are regularly held, at least four days prior to the holding of
the meeting. Notice by mail shall be deemed to have been given at the time a
written
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notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless, to
the recipient or to a person or by telephone or wireless, to the recipient or
to a person at the office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
Any notice, waiver of notice or consent to holding a meeting shall
state the time and place of the meeting but need not specify the purpose of the
meeting.
Section 3.09 Place of Meetings. Regular and special meetings of the
Board of Directors may be held at any place within or without the State which
has been designated by resolution of the Board. In the absence of such
designation meetings shall be held at the principal executive office of the
corporation.
Section 3.10 Action at a Meeting: Quorum and Required Vote. Presence
in person of a majority of the authorized number of directors at a meeting
shall constitute a quorum of the Board for the transaction of business, except
as hereinafter provided. Members of the Board may participate in a meeting
through use of conference telephone or similar communications equipment, so
long as all members participating in such meeting can hear one another.
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Participation in a meeting as permitted in the preceding sentence constitutes
presence in person at such meeting.
Except as provided in the next sentence, every act or decision done or
made by a majority of the directors present at a meeting duly held at which a
quorum is present is the act of the Board of Directors, unless a greater number
is required by law, the Articles of Incorporation or these bylaws. A meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, provided that any action taken
must be approved by a least a majority of the required quorum for such meeting.
Section 3.11 Adjournment. A majority of the directors present at any
meeting, whether or not a quorum is present, may adjourn any directors' meeting
to another time and place. If any meeting is adjourned for more than 24 hours,
notice of any adjournment to another time or place shall be given prior to the
time of the adjourned meeting to the directors who were not present at the time
of adjourned. Otherwise notice of the time and place of holding an adjourned
meeting need not be given to absent directors if the time and place is fixed at
the meeting adjourned.
Section 3.12 Action Without Meeting. Any action required or permitted
to be taken by the Board of Directors may be taken without a meeting if all
members of the Board shall individually or collectively consent in writing to
such action. Such written consent or consents shall be filed with the minutes
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of the proceedings of the Board and shall have the same force and effect as a
unanimous vote of such directors.
Section 3.13 Committees of the Board. By resolution adopted by a
majority of the authorized number of directors, the Board of Directors may
designate an executive committee, an audit committee and such other committees
as it shall determine, each consisting of two or more directors, to serve at
the pleasure of the Board, and prescribe the manner in which proceedings of
such committees shall be conducted. The appointment of members or alternate
members of a committee shall be by a majority vote of the authorized number of
directors. For purposes of these bylaws, the term "audit committee" shall mean
any committee of the Board of Directors to which is delegated the function of
periodically reviewing the financial condition, and the results of audit
examinations, of the corporation with the corporation's independent public
accountants. The audit committee, if appointed, shall not include any officer
or employee of the corporation unless the Board of Directors shall specifically
designate an officer or employee to serve on such committee.
Unless, to the extent permitted by the General Corporation Law, the
Board of Directors shall otherwise prescribe the manner of proceedings of any
such committee, the provisions of these bylaws with respect to notice and
conduct of meetings of the Board shall govern committees of the Board and
action by such committees.
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Any such committee, to the extent provided in a resolution of the
Board, shall have all of the authority of the Board, except with respect to:
(a) the approval of any action for which the General
Corporation Law or the Articles of Incorporation also require approval of the
shareholders;
(b) the filling of vacancies on the Board or on any
committee;
(c) the fixing of compensation of the directors for serving
on the Board or on any committee;
(d) the adoption, amendment or repeal of bylaws;
(e) the amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable;
(f) any distribution to the shareholders, except at a rate
or in a periodic amount or within a price range determined by the Board; and
(g) the appointment of other committees of the Board or the
members thereof.
ARTICLE IV
Officers
Section 4.01 Officers. The officers of the corporation shall be a
President, a Vice President, a Secretary and a Chief Financial Officer. The
corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board and such other officers, with such titles and duties, as
may be
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determined by the Board of Directors. One person may hold two or more offices,
except that the offices of President and Secretary shall not be held by the same
person.
Section 4.02 Election and Term of Office. The officers of the
corporation shall be chosen by the Board of Directors, and each shall hold
office at the pleasure of the Board or until such officer shall resign,
subject, in each case, to the rights, if any, of the corporation and any such
officer under any contract of employment with the corporation.
Section 4.03 Removal and Resignation. Any officer may be removed,
either with or without cause, by a majority of the directors at the time in
office, at any regular or special meeting of the Board of Directors, or, except
in case of an officer chosen by the Board of Directors, by any officer upon whom
such power of removal may be conferred by the Board of Directors, subject, in
each case, to the rights, if any, of any such officer under any contract of
employment with the corporation.
Any officer may resign at any time be giving written notice to the
corporation, without prejudice, however, to the rights, if any, of the
corporation under any contract to which such officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified in such notice; and, unless otherwise specified in
such notice, the acceptance of such resignation shall not be necessary to make
it effective.
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Section 4.04 Vacancies. A vacancy in any office shall be filled in the
manner prescribed in these bylaws for regular appointments to such office.
Section 4.05 Duties and Compensation. Officers of the corporation
shall have such powers and duties, and shall receive such compensation
therefor, as may be specified from time to time by the Board of Directors. In
the absence of any contrary determination by the Board of Directors, the
President shall be the general manager and chief executive officer of the
corporation and shall, subject to the power and authority of the Board of
Directors, have general supervision, direction and control of the officers,
employees, business and affairs of the corporation.
ARTICLE V
Indemnification of Agents of the Corporation;
Purchase of Liability Insurance
Section 5.01 Indemnification of Agents.
(a) for the purposes of this Section, "agent" means any
person who is or was a director, officer, employee or other agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was a
director, officer, employee or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at
the request of such predecessor corporation; "proceeding" means any threatened,
pending or completed action or
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proceeding, whether civil, criminal, administrative or investigative; and
"expenses" includes, without limitation, attorneys' fees and any expenses of
establishing a right to indemnification under paragraph (d) or subparagraph (e)
(3) of this Section.
(b) The corporation shall indemnify any person who was or is
a party, or is threatened to be made a party, to any threatened, pending or
completed proceeding (other than an action by or in the right of the
corporation to procure a judgment in its favor) by reason of the fact that such
person is or was an agent of the corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
(c) The corporation shall indemnify any person who was or is
a party, or is threatened to be made a party, to any threatened, pending or
completed action by or in the right of the
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corporation to procure a judgment in its favor by reason of the fact that such
person is or was an agent of the corporation, against expenses actually and
reasonably incurred by such person in connection with the defense or settlement
of such action if such person acted in good faith, in a manner such person
believed to be in the best interests of the corporation and its shareholders.
No indemnification shall be made under this paragraph (c):
(1) In respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation in
the performance of such person's duty to the corporation and its shareholders,
unless and only to the extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for the
expenses and then only to the extent that the court shall determine;
(2) Of amounts paid in settling or otherwise
disposing of a pending action, without court approval; or
(3) Of expenses incurred in defending a pending
action which is settled or otherwise disposed of without court approval.
(d) to the extent that an agent of the corporation has been
successful on the merits in defense of any proceeding referred to in paragraph
(b) or (c) or in defense of any claim, issue or matter therein, the agent shall
be indemnified against
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expenses actually and reasonably incurred by the agent in connection therewith.
(e) Except as provided in paragraph (d), any indemnification
under this Section shall be made by the corporation only if authorized in the
specific case, upon a determination that indemnification of the agent is proper
in the circumstances because the agent has met the applicable standard of
conduct set forth in paragraph (b) or (c), by any of the following:
(1) A majority vote of a quorum consisting of
directors who are not parties to such proceeding;
(2) Approval or ratification by the affirmative
vote of a majority of the shares of the corporation entitled to vote represented
at a duly held meeting at which a quorum is present or by the written consent of
holders of a majority of the outstanding shares entitled to vote, and by the
affirmative vote or written consent of such greater proportion of the shares of
any class or series as may be provided in the Articles of Incorporation for such
action. For purposes of determining the required quorum of any meeting of
shareholders called to approve or ratify indemnification of an agent and the
vote or written consent required therefor, the shares owned by the person to be
indemnified shall not be considered outstanding and shall not be entitled to
vote thereon; or
(3) The court in which such proceeding is or was
pending, upon application made by the corporation or the agent or the attorney
or other person rendering services in connection with
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the defense, whether or not such application by the agent, attorney or other
person is opposed by the corporation.
(f) Expenses incurred in defending any proceeding may be advanced by
the corporation prior to the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of the agent to repay such amount if it shall
be determined ultimately that the agent is not entitled to be indemnified as
authorized in this Section.
(g) This Section shall create a right of indemnification for each
person referred to in this Section, whether or not the proceeding to which the
indemnification relates arose in whole or in part prior to adoption of this
Section, and, in the event of the death of such agent, whether before or after
initiation of such proceeding, such right shall extend to such person's legal
representatives. This Section does not apply to any proceeding against any
trustee, investment manager or other fiduciary of an employee benefit plan in
such person's capacity as such, even though such person may also be an agent of
the corporation as defined in paragraph (a). The corporation shall have the
power to indemnify such a trustee, investment manager or other fiduciary to the
extent permitted by Section 207(f) of the General Corporation Law. In addition,
the indemnification provided by this Section shall not be deemed exclusive of
any other rights to which those seeking indemnification may be entitled under
any agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in an official capacity and as to
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action in another capacity while holding such office, to the extent such
additional rights to indemnification are authorized in the Articles of
Incorporation. The rights of indemnity under this Section shall continue as to
a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such person.
Nothing contained in this Section shall affect any right to indemnification to
which persons other than such directors and officers may be entitled by
contract, insurance policy or otherwise.
(h) No indemnification or advance shall be made under this Section,
except as provided in paragraph (d) or subparagraph (e)(3), in any circumstance
where it appears:
(1) That it would be inconsistent with a provision of the
Articles of Incorporation, these bylaws, a resolution of the shareholders or an
agreement in effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or other amounts
were paid, which prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
Section 5.02 Purchase of Liability Insurance. Upon determination by
the Board of Directors, the corporation may purchase and maintain insurance on
behalf of any agent of the corporation against any liability asserted against
or incurred by the agent in such capacity or arising out of the agent's status
as such, whether or not the corporation would have the power to
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indemnify the agent against such liability under the provisions of this Section.
ARTICLE VI
Miscellaneous
Section 6.01 Record Date. The Board of Directors may fix a time in the
future as a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting of shareholders or to give consent to
corporate action in writing without a meeting, to receive any report, to
receive payment of any dividend or distribution or allotment of rights, or to
exercise rights in respect to any other lawful action. The record date so fixed
in advance shall not be more than 60 days nor less than ten days prior to the
date of any meeting, nor more than 60 days prior to any other event for the
purposes of which it is fixed.
If no record date is fixed by the Board of Directors:
(a) The record date for determining shareholders entitled to notice
of or to vote at a meeting of shareholders shall be the business day next
preceding the day on which notice is given or, if notice is waived, the
business day next preceding the day on which the meeting is held;
(b) The record date for determining shareholders entitled to give
consent to corporate action in writing without a meeting, when no prior action
by the Board has been taken, shall be the day on which the first written
consent is given; and
(c) The record date for determining shareholders for any other
purpose shall be the day on which the Board adopts
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the resolution relating thereto, or the 60th day prior to the date of such
action, whichever is later.
A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting
unless the Board fixes a new record date for the adjourned meeting, but the
Board shall fix a new record date if the meeting is adjourned for more than 45
days from the date set for the original meeting.
Subject to the provisions of Sections 702 to 704 of the General
Corporation Law relating to voting of shares held by a fiduciary, receiver,
pledgee or a minor, or in the name of a corporation or in joint ownership, only
shareholders of record at the close of business on the record date are entitled
to notice and to vote at any such meeting, to give consent without a meeting, to
receive any report, to receive the dividend, distribution or allotment of
rights, or to exercise the rights, as the case may be, as to which such record
date is fixed, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the Articles
of Incorporation or by agreement or applicable law.
Section 6.02 Maintenance of Books and Records. The corporation shall
keep adequate and correct books and records of account and shall keep minutes of
the proceedings of its shareholders, Board of Directors and committees of the
Board and shall keep at its principal executive office, or at the office of its
transfer agent or registrar, a record of its shareholders,
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giving the names and addresses of all shareholders and the number and class of
shares held by each. Such minutes shall be kept in written form. Such other
books and records may be kept either in written form or in any other form
capable of being converted into written form.
The corporation shall keep at its principal executive office in
California, or if its principal executive office is not in California, then at
its principal office in California (or otherwise provide upon written request of
any shareholder) the original or a copy of these bylaws as amended to date,
certified by the Secretary.
Section 6.03. Inspection of Corporate Records. These bylaws, as
amended to date, the accounting books and records, the record of shareholders
and minutes of proceedings of the shareholders, the Board and committees of the
Board of the corporation and any subsidiary of the corporation shall be open to
inspection upon the written demand on the corporation of any shareholder or
holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interests as a
shareholder or as the holder of such voting trust certificate. Such inspection
by a shareholder or holder of a voting trust certificate may be made in person
or by agent or attorney, and the right of inspection in this paragraph includes
the right to copy and make extracts at such holder's expense.
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A shareholder or shareholders holding at least five percent (5%) in the
aggregate of the outstanding voting shares of the corporation or who hold at
least one percent (1%) of such voting shares and have filed a Schedule 14B with
the United States Securities and Exchange Commission relating to the election of
directors of the corporation shall have (in person, or by agent or attorney) the
right to inspect and copy the record of shareholders' names and addresses and
shareholdings during usual business hours upon five business days' prior written
demand upon the corporation and/or to obtain from the transfer agent for the
corporation, upon written demand and upon the tender of its usual charges, a
list of the shareholders' names and addresses, who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which it has been compiled or as of a date specified by the shareholder
subsequent to the date of demand. The list shall be made available on or before
the later of five business days after the demand is received or the date
specified therein as the date as of which the list is to be compiled. The
corporation shall use reasonable efforts to cause its transfer agent to comply
with the requirements of this paragraph.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of the corporation and its subsidiaries. Such inspection
by a director may be made in person or by agent or attorney and the right of
inspection includes the right to copy and make extracts.
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Section 6.04 Annual and Other Reports. (a) So long as the
corporation has less than 100 holders of record of its shares (determined as
provided in Section 605 of the General Corporation Law), no annual report to
shareholders shall be required, and the requirement to the contrary of Section
1501 of the General Corporation Law is hereby expressly waived. Whenever the
corporation has more than 100 shareholders of record (determined as provided in
Section 605 of the General Corporation Law), the Board of Directors of the
corporation shall cause an annual report to be sent to the shareholders not
later than 120 days after the close of the fiscal year, provided that such
report shall in any event be sent to shareholders at least 15 days (or, if sent
by third-class mail, 35 days) prior to the annual meeting of shareholders to be
held during the next fiscal year. Such report shall contain a balance sheet as
of the end of such fiscal year and an income statement and statement of changes
in financial position for such fiscal year and shall be accompanied by any
report thereon of independent accountants or, if there is no such report, the
certificate of any authorized officer of the corporation that such statements
were prepared without audit from the books and records of the corporation. Such
report shall also contain any additional matters required by Section 1501(b) of
the General Corporation Law and applicable provisions of the Securities and
Exchange Act of 1934 and other laws.
(b) If no annual report for the last fiscal year has been sent to
shareholders, the corporation shall, upon the written
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request of any shareholder made more than 120 days after the close of such
fiscal year, deliver or mail to the person making the request, within 30 days
thereafter, the annual report for such year, if such report is required by
paragraph (a) above.
(c) A shareholder or shareholders holding at least five percent
(5%) of the outstanding shares of any class of the corporation may make a
written request to the corporation for an income statement of the corporation
for the three-month, six-month or nine-month period of the current fiscal year
ended more than 30 days prior to the date of the request and a balance sheet of
the corporation as of the end of such period and, in addition, if no annual
report for the last fiscal year has been sent to shareholders, an annual report
for the last fiscal year. The corporation shall use its best efforts to deliver
or mail the statement to the person making the request within 30 days
thereafter. A copy of the statements shall be kept on file in the principal
executive office of the corporation for 12 months, and they shall be exhibited
at all reasonable times to any shareholder demanding an examination of them or a
copy shall be mailed to such shareholder. The quarterly income statements and
balance sheets referred to in this paragraph (c) shall be accompanied by the
report thereon, if any, of any independent accountants engaged by the
corporation or the certificate of an authorized officer of the corporation that
such financial statements were prepared without audit from the books and records
of the corporation.
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(d) All financial statements, balance sheets, income statements
and statements of changes in financial position of the corporation prepared
pursuant to this Section 6.04 shall be prepared, and shall fairly present the
matters which they purport to present, in conformity with generally accepted
accounting principles then applicable, except that if the corporation shall have
fewer than 100 holders of record of its shares (determined as provided in
Section 605) the financial statements required to be furnished by this Section
6.04 are not required to be prepared in conformity with generally accepted
accounting principles if they reasonably set forth the assets and liabilities
and the income and expense of the corporation and disclose the accounting basis
used in their preparation. If the corporation has subsidiaries, all such
financial statements shall be consolidated statements of the corporation and
such of its subsidiaries as are required to be included in such consolidated
statements under generally accepted accounting principles then applicable.
Financial statements other than annual statements may be condensed or otherwise
presented as permitted by authoritative accounting pronouncements.
Any report required or permitted by this Section shall be given in the
manner and shall be deemed to have been given by the corporation as provided in
the first three paragraphs of Section 2.05 of these bylaws.
Section 6.05 Certificates for Shares. Every holder of shares in
the corporation shall be entitled to have a certificate signed in the name of
the corporation by the Chairman or Vice
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Chairman of the Board or the President or a Vice President and by the Chief
Financial Officer or an Assistant Treasurer or the Secretary or any Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. Any or all of the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if such
person were an officer, transfer agent or registrar at the date of issue.
If the shares of the corporation are at any time classified, or if any
class of shares has two or more series, any such certificate for shares of the
corporation shall contain, on its face or on the reverse thereof with a
reference thereto on its face, one of the statements required by Section 417 of
the General Corporation Law.
Any such certificate shall also contain such legend or other statement as
may be required by Sections 409(d) and 418 of the General Corporation Law, the
Corporate Securities Law of 1968, the federal securities laws, and any
agreement between the corporation and the issuee of such certificate.
The corporation may issue a new share certificate or a new certificate for
any other security in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed. The corporation may require the
owner of the
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lost, stolen or destroyed certificate or the owner's legal representative to
give the corporation a bond (or other adequate security) sufficient to
indemnify it against any claim that may be made against it (including any
expense or liability) on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate.
When the Articles of Incorporation are amended in any way affecting the
statements contained in the certificates for outstanding shares, or it becomes
desirable for any reason, in the discretion of the Board, to cancel any
outstanding certificate for shares and issue a new certificate therefor
conforming to the rights of the holder, the Board may order any holders of
outstanding certificates for shares to surrender and exchange them for new
certificates within a reasonable time to be fixed by the Board.
The order may provide that a holder of any certificates so ordered to be
surrendered is not entitled to vote or to receive dividends or exercise any of
the other rights of shareholders until the holder has complied with the order,
but such order operates to suspend such rights only after notice and until
compliance. The duty of surrender of any outstanding certificates may also be
enforced by civil action.
Section 6.06 Representation of Shares of This and Other Corporations.
All rights incident to any and all shares of another corporation or
corporations standing in the name of the corporation may be exercised by such
officer, agent or proxyholder as the Board
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of Directors may designate. In the absence of such designation, such rights may
be exercised by the Chairman of the Board or the President of the corporation,
or by any other person authorized to do so by the Chairman of the Board or the
President of the corporation.
Except as provided below, shares of the corporation owned by any
subsidiary of the corporation shall not be entitled to vote on any matter.
Shares of the corporation held by the corporation in a fiduciary capacity,
and shares of the corporation held in a fiduciary capacity by any subsidiary of
the corporation, shall not be entitled to vote on any matter, except to the
extent that the settlor or beneficial owner possesses and exercises a right to
vote or to give the corporation or such subsidiary binding instructions as to
how to vote such shares.
Solely for purposes of this Section 6.06, a corporation shall be
considered a "subsidiary" of the corporation if the corporation owns, directly
or indirectly through one or more subsidiaries, shares of the other corporation
possessing more than twenty-five percent (25%) of the power to vote for the
election of directors at the time determination of such voting power is made.
Section 6.07 Construction of These Bylaws. Unless the context of a
Section of these bylaws otherwise requires, the terms used in these bylaws
shall have the meanings provided in, and these bylaws shall be construed in
accordance with, Chapter 1 of the General Corporation Law.
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ARTICLE VII
Amendments
Section 7.01 Power of Shareholders. New bylaws may be adopted or these
bylaws may be amended or repealed by the affirmative vote or written consent of
a majority of the outstanding shares entitled to vote, except as otherwise
expressly provided by applicable law or by the Articles of Incorporation or
elsewhere in these bylaws.
Section 7.02 Power of Directors. Subject to the right of shareholders,
as provided in Section 7.01, to adopt, amend or repeal bylaws (other than a
bylaw or amendment thereof changing the authorized number of directors or
otherwise restricted by applicable law, the Articles of Incorporation or these
bylaws to amendment or repeal by the shareholders) may be adopted, amended or
repealed by the Board of Directors.
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CERTIFICATE OF SECRETARY
The undersigned does hereby certify:
1. That I am the duly elected and acting Secretary of Atwork
Corporation; and
2. That the foregoing bylaws, comprising 42 pages, including this page,
constitute the bylaws of the corporation as duly adopted by the Board of
Directors of the corporation, by unanimous written consent dated 14th April
1992.
IN WITNESS WHEREOF, I have executed this Certificate as Secretary of the
corporation this 14th day of April, 1992.
/s/ John P. Holton
------------------
John P. Holton
Secretary
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